Substance Abuse and Custody

Lots of people struggle with substance abuse.  Lots.  Over the years, I’ve seen many, many women who tell me that they struggled with a drug or alcohol addiction.  I think, because they’re often so used to being judged for the issues that they’ve faced, they fully expect to be told that they won’t be able to get custody or have any parenting time.

That’s (generally speaking) not the case at all, though.  If you’re a mom and you’ve struggled with substance abuse issues, that doesn’t mean you should give up on being able to parent your child.  Far from it!  In fact, in my opinion, as a mom too, I think that’s one of the worst things you can do – both for your sake, and for the sake of your child.  Your child needs you, flaws and all.

Will the judge be able to see past my previous substance abuse issues in a custody case?

I can’t say anything is always true 100% of the time.  It’s also true that it’s impossible to read a judge’s mind, or know exactly how he or she might come down on a particular issue. That being said, though, in my experience, a judge is going to be willing to look past your issues (provided, of course, that you’ve got them under control now) to determine what’s in the child’s best interests.

In Virginia, as in most everywhere else, custody is determined based on the best interests of the child standard.   And, in most cases, judges feel that having access to TWO parents is in a child’s best interests.   Judges want two parents to be able to be involved.  As long as you’re clean and sober now, and you haven’t made any decisions that have seriously endangered the welfare of your child, you’ll probably be able to finagle some parenting time.

A judge won’t take visitation from me because I had drug or alcohol issues in the past?

Mostly, no.  Though it’s possible, generally speaking judges applaud parents for getting help where they need it, and making improvements to their lives.  The fact that you hit rock bottom and made poor choices previously doesn’t mean that you can’t turn it around to be there for your child. It’s GOOD if you recognize problems and do something about it.  Getting help, going to rehab, or taking whatever steps you needed to take to get yourself back on the right path will be supported by the court.  And, even so, it’s not about what’s good for you, it’s solely about what’s good for the child.  Having you in his life is good for your child.

Beyond all that, judges don’t take custody from parents preemptively.  Custody is taken after a parent screws up.  Most of the time, you’ll get a chance.

What if my child’s other parent (or someone else, like a grandparent) has full custody now?

That’s okay, too.  Custody in Virginia is always modifiable, based on material change in circumstances, so even if custody was determined before (whether by the court or by agreement), it can be changed. Custody changes all the time.  Again, we’re back to that whole “best interests of the child” thing.  Just because something may have been in a child’s best interest at a different point in time doesn’t mean that will always be the case.  Judges are willing to listen to the same case and hear the changed circumstances – which can often warrant a change in custody, visitation, or child support. It’s all about being able to show that a change is in a child’s best interests, and how you’re willing and able to adapt to that.

What if my child’s other parent won’t let me see my child at all?

Shame on them!  Judges generally don’t have much patience with this kind of behavior.  In fact, if you read the best interests of the child factors, remember factor number 6.  “The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child”—this is KEY.

If your child’s other parent is unreasonably denying access to or visitation with the child (and if he is allowing you no access at all, chances are quite good it’s pretty darn unreasonable), it could warrant a total change in custody.  I’ve seen that happen. In fact, as far as custody mistakes go, not allowing a child’s other parent to be involved is one of the biggest.  It’s pretty huge.

More good news: if you do have to go to court, it’s kinda hard to lose if you’re not able to have any parenting time with the child at all.  At this point, the other parent has everything to lose, and you (since you have nothing) have everything to gain.

Do I have to go to court, or can we reach an agreement?

An agreement is always a possibility.  If you and your child’s other parent can reach an agreement together, that’s definitely going to be ideal.  If you can’t though, there’s no shame in having to use the court to help the two of you reach a resolution. You have a lot to offer your child, and you shouldn’t let any guilt or shame about any previous issues get in the way of your having the opportunity to parent your child.  I know it’s difficult, and I know you’ve been through a lot, but there’s no time like the present to make positive changes for your child’s well being.  Either negotiate something with your child’s other parent, or go to court, if necessary.

Can I represent myself or do I need an attorney?

Either.  It totally depends on your level of comfort.  Plenty of people represent themselves in custody and visitation petitions since it’s at the juvenile court level (which is more user friendly than the circuit court), and also because anything that happens at the juvenile court level is automatically appealable to the circuit court.  So, theoretically at least, you could always represent yourself at the juvenile court level and, if you got a result you didn’t like, you could hire an attorney to represent you at the circuit court level.

If you’re interested in representing yourself, or learning whether it’s even possible, click here to request a free copy of our report, “Can I REALLY Represent Myself in a Custody and Visitation Case?” and here  for more information about Custody Bootcamp for Moms, our custody seminar. For more information or to schedule a consultation with one of our attorneys, give our office a call at (757) 425-5200.

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